## Trustees Briefing 2024 - This serves as a briefing to trustees on the new [[Source - Higher Education (Freedom of Speech) Act 2023 by legislation.gov.uk]]. - It is a combination of information taken from the following written sources: - [Universities UK: How can universities prepare for the Higher Education (Freedom of Speech Act)](https://www.universitiesuk.ac.uk/sites/default/files/field/downloads/2023-09/how-can-unis-prepare-for-the-HE-freedom-of-speech-act.pdf) and the notes here: [[Source - How Can Universities Prepare for the Higher Education (Freedom of Speech) Act by UUK]] - [NUS: Freedom of Speech Briefing](https://www.nusconnect.org.uk/ud/campaigns/freedom-of-speech) (requires login) - [NUS: Freedom of Speech Act current issues October 2023](https://nusdigital.s3.eu-west-1.amazonaws.com/document/documents/107676/ce4b58b7bce2352344b1307efc9bbc16/Freedom_of_Speech_current_issues_October_2023.pdf?X-Amz-Expires=10000&X-Amz-Date=20231117T163917Z&X-Amz-Security-Token=IQoJb3JpZ2luX2VjEGEaCWV1LXdlc3QtMSJGMEQCIGqkc4iixjLZXyt9HGXuDtdTkyUtExkjwbaCtbA0C80nAiA4kAMuVxucBJsZ9nm4WSjBOgg%2FvdU2xbikCmqNG5LE%2BiqSBAiq%2F%2F%2F%2F%2F%2F%2F%2F%2F%2F8BEAAaDDg3OTIyODM0MDMzOCIMFrwzSWbLTlO%2Fp1lbKuYDDUXJYjR9jfZaPtPaMfGFuNS6ZNBH9CCTDiXvYtgpqjnoW4mbWbCTnVmCuWWh%2Fl47cPV1yXojwtBrU6Cc10r1SQCSqU8yVjxqYXLJe9%2FCBibPKHNvu%2BIOUHwRZMjAgB6I2%2Btlap4g1fq64ifiwVafSNwgm%2F9dMjYOsqf4xCl1bc7w2X7TtOBoYJXdh9L22dGmgQYM%2B83ZpOb4wskfK2BwR4CILtwmHcgehNC1xY%2Betmek%2BH0GV9PechW8OMJueOvDuqKMh0jtAb9qAnvX%2Bb7nPen9uXMwIlfgnKptDx6aNJfCIiom2M3DCT2GqLvObVPMNZYfhemwf%2BKTY8Vi6YzSXDcGrFGFGj%2FnbpN0HdKO1RXk92XTI1%2FiCuz4RdkcYkmCa27BtiNKhYXbPS%2BXy9o9%2B01YXc%2FnTJ4zmKh%2B1ZQI5Ej3arZy0V%2FICil3voooVNMIJR032uz8FHAozBU3IuU6PvTc3fe5fMO3cBmIfiDvJyksOwmMC5krvAroSFrGkqstGZuRF%2F5W6aX9UaiDAyaYplH1dO3JnvvARSzxZU3WZBXlctdsnRKzXk8W7897gAYfkpVut2SF2JOvT%2B06%2B7b3E7EB3ds7%2Bcid%2FhYExNLI0tSJqdOa3oG2muGlUN%2B0SlOz1ThSuFuqML6r3qoGOqYBsrU6vgtOP%2BOS3GrT%2FLwXaHBiVs5mO4e6UHK%2BdD9G4e24Jh14x3lBHVMTcOw5WiFF%2F%2B2BAX2NwW86BBoBrCDiLXOJC5wFhAsrDh1897l8FFMAi3gRCyE0Dm0oYsDDlGa6aa2Z0goTYunsJ%2FnJvL%2FfwoNL2O44l7W2Hq1bbH5XLa6xxjFzat3roeZoMAibhyRNzw6nuMNGICAsmE0pl6C9JAkgbfFZBA%3D%3D&X-Amz-Algorithm=AWS4-HMAC-SHA256&X-Amz-Credential=ASIA4ZNQXZBZII3VBCOI%2F20231117%2Feu-west-1%2Fs3%2Faws4_request&X-Amz-SignedHeaders=host&X-Amz-Signature=6cabf7597678e7b5bd5bb03ce20a6df696c8605958e257a2fa46a08b49933007) (requires login) - [Association of the Heads of University Administrators (AHUA) Freedom of Speech Position Statement](https://www.ahua.ac.uk/wp-content/uploads/sites/79/2023/08/AHUA-Position-Statement-.pdf) and the notes here: [[Source - AUA Freedom of Speech Position Statement]] - The [[Leeds University Union (LUU) 'No Surprises' Policy]] ## **_Higher Education (Freedom of Speech) Act 2023_** The [[Source - Higher Education (Freedom of Speech) Act 2023 by legislation.gov.uk]] has been passed into law, and has several impacts that the trustees will need to consider, including: ## Summary Three new areas: - 'Secure' duty: secure freedom of speech. take reasonably practicable steps. Members, staff, visiting speech. *Reasonably practicable steps* to secure freedom of speech. Emphasis on the first bit. Speech within the law. - 'Code of practice' duty: set out values, procedures re meetings and activities. Expected conduct. Criteria to be used by the SU re funding and support. - Tort: right for person to bring a claim. ### Details - The requirement for universities to _promote_ lawful freedom of speech rather than just protect it. This means that: - invited speakers or students cannot be cancelled or disallowed due to lawful ideas or opinions. - Security costs cannot be passed onto students, external speakers or groups. - SU staff have a specific right to freedom of speech for the first time. This could have implications for our HR contracts and policies. - SUs as well as universities will be overseen by the [[Office for Students]] (OfS), the first time the OfS have had any regulatory responsibility for SUs. It also appoints a 'Freedom of Speech Champion'- this has been subsequently announced as Professor Arif Ahmed. - A new statutory tort (a civil wrong addressed by the award of damages) is created for breach of this duty, enabling students, staff or invited speakers who have 'suffered loss' to seek compensation via the OfS's complaints scheme. This scheme has not yet been created. - The requirement to maintain a code of practice outlining: - how USSU values and upholds freedom of speech - the processes and policies for external speaker events and management of student groups - support and funding available for the promotion of freedom of speech. There are also ancillary aspects of the Act that are of interest to SUs: - an enhancement of academic freedom protections by extending coverage to include recruitment and promotion of university staff - a ban on the use of non-disclosure agreements (NDAs) by universities to silence victims of sexual misconduct, and other forms of bullying or [[Harassment]] - an introduction of transparency measures concerning overseas funding and how it might impact freedom of speech and academic freedom. ## **_Interaction with other legislation/ guidance_** USSU must also adhere to other legislation and guidance regarding free speech, including the [[1994 Education Act]], [[European Convention on Human Rights (the Convention)]], [[Equality Act 2010#Public sector equality duty|Public Sector Equality Duty]], and of course the obligations and duties that trustees have to USSU under Charity Law, for example reputational risk. There is also the [[Counter Terrorism and Security Act 2015 (Prevent Duty)]] to consider- we need to ensure students are not drawn into terrorism. The new Act states that 'due regard' must be shown to these, whereas 'particular regard' should be given to the Freedom of Speech Act, which means speech needs to be considered separately as well as given a higher priority. It is likely that what this means will be tested in the courts in future. See [[Source - How Can Universities Prepare for the Higher Education (Freedom of Speech) Act by UUK#What do the terms ‘have due regard’ and ‘have particular regard’ mean? ([View Highlight](https //read.readwise.io/read/01hfpayt7h40bqg10etvbzxt3g))|here for more]]. ## ![[Illegal speech]] ## Legal but harmful speech This ultimately means that 'legal but harmful' speech must be allowed on campus and under our auspices. However we must have 'due regard' to how we limit the impact of the expressed views on students, including minoritised groups, and whether or not the views expressed violates our bulling, harassment, or EDI policies. See free speech [[Equality Act 2010#Equality Act Case Law|case law]] for more information about what is a protected belief. _No surprises_ Given the new legislation there could be an increase in the number of controversial speakers coming to campus, and unless they are going to say something illegal those speeches must be supported by the University and/or SU. So we are in a position that we can 'respond and not react' to controversial speaker requests it's recommended that we create a culture of 'no surprises' within the student population, as far as possible. This will require active engagement with 'high risk' groups that perhaps focus on, or are associated with, political, national or religious debates. The 'no surprises' policy would seek to ensure that speakers' right to freedom of speech is promoted, and that the impact of any of this speech is understood in advance of the event(s) taking place, so that action to ameliorate the impact can be taken. This idea is borrowed from Leeds University Union - see [[Leeds University Union (LUU) 'No Surprises' Policy]] # Understanding Freedom of Speech - Freedom of speech [[Means-End confusion|is not an end in itself]] see [[What is the purpose of freedom of speech?]] - The debate at the moment centres on [[Freedom of Speech vs Freedom from Harm]] - There are lots of [[What do people get wrong about freedom of speech?|things that people get wrong about freedom of speech]], including that it is an absolute right, that there will be a lack of consequences to their speech even if legal, that it is a shield for criticism and critique, and different groups have different access to freedom of speech. People also confuse freedom of speech with platform access (social media sites are not the government, and have their own terms of service) and also, importantly, that [[context is king]] and ignoring the historical, cultural and social context can lead to a misinterpretation of the impact and intent of statements. - There is a balancing act here. See [[Source - Understanding the Free Speech Legal Balance]] - [[Combining freedom of speech and freedom from harm]]